SAIFUR REHMAN Versus STATE

MIAN BURHANUDDIN KHAN, J. --Leave was granted by this Court, per order dated 26-1-1983 to consider the quantum of punishment of Saifur Rahman alias Chili appellant alone, who was awarded the death sentence by the learned trial Court, while Jail petitions filed by his two co-accused Muhammad Afzal and Muhammad Ashraf were dismissed.

Saifur Rahman, appellant, alongwith Muhammad Afzal alias Khaka, Muhammad Ashraf alias Kaka, Liaqat Ali alias Liaqi and Faqir Hussain alias Firu, was tried by the learned Additional Sessions Judge, Faisalabad for committing the murder of Munawar deceased and for making murderous assault on Javed Ahmad P.W.

9. The learned trial Court convicted Saifur Rahman, appellant under section 302/34, P.P.C. and sentenced him to death and fine of Rs.5,000, in default, 2 years R.I.; life imprisonment to Muhammad Afzal and Muhammad Ashraf and fine of Rs.5,000, in default, 2 years R.I. each; and convicted all the three of them under section 307/34, P.P.C. and sentenced them to seven years' R.I., in default, to suffer six months R.I. each; while Liaqat Ali and Faqir Hussain were acquitted per judgment dated 10-6-1978.

2. Appeals filed by the three above-named convicts, against their conviction and sentence and Murder Reference for confirmation of the death sentence awarded to Saifur Rahman appellant, were heard by a learned Division Bench of the Lahore High Court and the learned Judges dismissed the appeals and confirmed the death sentence awarded to the appellant Saifur Rahman by the learned trial Court, per impugned judgment dated the 15th December, 1980.

3. According to the prosecution case, at about 3.30 p.m. Javed Ahmad P.W.9, alongwith Munawar deceased, was sitting in the shop of Nazir alias Pissu on 15-2-1975, and having cup of tea, when Saifur Rahman, armed with a bugda came there, followed by Muhammad Ashraf, Muhammad Afzal and Liaqat Ali, armed with chhuries and Faqir Hussain, armed with a knife. Abbas Ali P.W. 12 was also taking tea in the aforesaid shop at that time, when Saifur Rahman appellant raised a lalkara and gave a bugda blow to Munawar deceased on his back; Muhammad Afzal dealt a dagger blow to complainant Javed Ahmad P.W. 9; Muhammad Ashraf accused gave a dagger blow on the left arm of Munawar deceased; second blow on the left arm of deceased was dealt by Muhammad Afzal; Saifur Rahman accused/ appellant then gave a bugda blow between the legs of Munawar deceased who then fell on the ground; thereafter Muhammad Ashraf gave him a dagger blow on the back; and Azam (absconder) Liaqat Ali and Faqir Hussain dealt blows on the buttocks of Munawar deceased. Saifur Rahman gave a blow to complainant Javed Ahmad with blunt side of bugda who fell on the ground. On the alarm raised by the victims Shabbir Ahmad P.W. 10 and Khalifa Saeed Ahmad reached the spot and witnessed the occurrence. Munawar deceased was taken to the Civil Hospital, Faisalabad where he succumbed to the injuries.

4. Motive for the crime is stated to be that a day prior to the occurrence Javed Ahmad P.W. 9 and Munawar deceased had gone to Babar Cinema to see the film and were standing in the queue for the purchase of tickets when Saifur Rahman appellant came there. He pushed Javed Ahmad P.W. out of the line and stood in his place. Saifur Rahman appellant abused Javed Ahmad and grappled with him but the deceased Munawar and others intervened and separated them. While leaving the cinema precinct Saifur Rahman threatened Javed Ahmad saying that he will teach him a lesson.

5. Post-mortem on the dead body of Munawar was performed by Dr.Abdul Haleem Sohata P.W. 2 who found the following injuries on the body of deceased:-

(i) incised wound 2" x 1/3" x muscle deep with 1" tail on the left arm

(ii) incised wound 1 x " x skin deep above injury (i)

(iii) stab 1" x 1/3" x muscle deep back of right lower chest.

(iv) incised wound 2" x " x skin deep back of lower chest.

(v) stab 1"x x 1/2" middle part of left buttock

(vi) stab 1/2" x 1/3" x 1/2" base of left buttock

(vii) stab 1/3" x 1/3" x 1/6" over back coxygeal region

(viii) stab 2" x 1/3" x 1/3" right thigh, lateral side

(ix) stab 3/4" x 1/2" x 1/3" on the left buttock lateral side

(x) abrasion 1" x 1/2" x 1/2" x 1/2" on the left knee and

(xi) abrasion 1/4" x 1/4" on the right knee and

(xii) contused swelling covering 6" x 4" in right iliac fossa and whole scrotun base 1/3rd of penis (haemon. toma)

According to the doctor, death was caused due to shock and haemorrhage specially by injuries Nos.1, 5, 6, 8, 9 and 12.

The same doctor examined Javed Ahmad P.W. 9 and found stab wound 3/4 x "; incised wound on left side of head and two abrasions.

Dr. Abdul Haleem had also examined Muhammad Ashraf accused and found a lacerated wound on the back of his left hand and another lacerated wound on the dorsum of left hand.

6. Learned counsel for the appellant submitted that the Courts below have not taken notice of the fact that in the site plan Ex.PE/1 the incident took place near the shop of Ghafoor butcher, and according to the prosecution bugda had been used as a weapon in this assault. Therefore, the only conclusion which can be drawn would be that bugda was lifted from the shop of the said butcher and it was used in the assault. Likewise; the possibility of taking up the chhuries from the said shop by the co-accused also could not be excluded. He submitted that the incident occurred on the spur of the moment between the deceased and the accused /appellant, and, therefore, it cannot be said that it was a pre-meditated murder. This entire aspect of the prosecution case had not been examined by the learned Judges of the High Court.

The learned counsel further contended that one of the accused namely Muhammad Ashraf suffered two lacerated wounds and the time of his arrest and medical examination thereafter, correspond to the time of incident. But none of the eye-witnesses spoke about the said injuries on the person of Ashraf accused. Therefore, the inception of the fight is shrouded in mystery and the possibility that Muhammad Ashraf accused was attacked and then he and his companions assaulted Javed Ahmad PW and the deceased Munawar cannot 6e ruled out; that the motive stated by Javed Ahmad would also lead to the conclusion that the ill-will was between Javed Ahmad PW and Saifur Rahman appellant. The deceased was neither directly nor indirectly involved in scuffle at the cinema a day earlier to the occurrence. Therefore, the learned counsel submitted that it could be reasonably concluded that there was no intention to kill the deceased Munawar. Lastly, it was contended that the medical evidence contradicts the ocular testimony as there was no bugda injury sustained by the deceased or by the witness which had been assigned, in the assault, to Saifur Rahman appellant; that it is also established that it was the accused/ appellant Saifur Rahman alone who caused the fatal injuries to the deceased. The conclusion, the learned counsel submitted, had been wrongly drawn by the learned trial Court in paragraph 16 of its judgment in the following words:-

"On the point of sentence under section 302/34 P.P.C., a distinction is to be maintained between the accused who caused fatal injuries to the deceased and the PW and who are only vicarious (vicariously) liable for the same. According to the statement of PW 2 the injuries which proved fatal and were sufficient to cause the death in the course of nature, on the person of the deceased, were injuries Nos.12, 5, 6, 8, 9 and 1. Out of these injuries, injury No.12 has been attributed to Saifur Rahman alias Chilli accused whereas injuries Nos.1 and 2 have been attributed to Muhammad Ashraf alias Kaka and Muhammad Afzal alas Khaka accused, but it is not specific as to which of these two caused injury No.1. Injuries Nos.5, 6 and 9 have been attributed to Liaqat alias Liaqi and Faqir Muhammad alias Firu accused, whom I have already given a benefit of doubt, and acquitted them of the charge. I, therefore, sentence Saifur Rahman alias Chilli accused to death and a fine of Rs.5,000, or two years R.I., in default thereof

We see reason in the arguments of the learned counsel as to the fact that the role attributed to all the convicted accused is similar, and the injuries which are considered fatal are five, all of which were not caused by Saifur Rahman accused /appellant alone. Therefore, his liability is the same as of the other accused. Hence, we alter the death sentence awarded to Saifur Rahman accused/ appellant to life imprisonment and enhance the amount of fine to Rs.10,000 (rupees ten thousand only) payable as compensation to the heirs of the deceased; in default, 3 years R.I. Benefit of section 382-B Cr.P.C. shall also be extended to the accused /appellant. With this modification the appeal is allowed.

S.Q./S.95/S Appeal allowed